Second Bill to Curb Underage Dextromethorphan Abuse Introduced in House

Representative Bill Johnson (R-Ohio) introduced a second bill in Congress that seeks to curb abuse of dextromethorphan by teenagers. Johnson introduced the Preventing Abuse of Cough Treatments of 2014 Act (“PACT Act”) last week. The PACT Act, H.R. 3969, co-sponsored by Bruce Braley (D-Iowa), is the second bill that Congress is considering that would restrict the sale of dextromethorphan to individuals under 18 years old. Senator Robert Casey (D-Pennsylvania) introduced a companion bill, S. 644, the Preventing Abuse of Cough Treatment Acts of 2013, (also referred to as the “PACT Act”) in the Senate on March 21, 2013.

Dextromethorphan is an antitussive (i.e., cough suppressant) found in over 120 over-the-counter cough and cold products. Dextromethorphan is not a federally-controlled substance (though legislation introduced several years ago attempted to schedule unfinished dextromethorphan - see here). The Drug Enforcement Administration (“DEA”) has noted “individuals of all ages” abuse it, but “its abuse by teenagers and young adults is of particular concern.” Dextromethorphan, DEA Office of Diversion Control, July 2012.

The bills would amend the Federal Food, Drug, and Cosmetic Act and would:

Prohibit the sale, or offering for sale, of any drug containing dextromethorphan to individuals under 18 years old except pursuant to valid prescriptions or for military personnel;

Deem retailers who fail to request government-issued identification for an individual under 18 years old to have knowledge that the customer was underage unless they could reasonably presume from the customer’s appearance that they are at least 25 years old;

Provide an affirmative defense for retailers who check identification and reasonably conclude that the identification is valid and indicates that the customer is at least 18 years old;

Prohibit possession or receipt of unfinished dextromethorphan by any person not registered, licensed or approved under federal or state law to practice pharmacy, engage in “pharmaceutical production,” or manufacture or distribution of drug ingredients;

Prohibit the distribution of unfinished dextromethorphan to unregistered or unauthorized persons;

Create the following penalties for violating the age prohibition: a warning letter for a first violation; civil penalties of up to $1,000 for a second violation, civil penalties of up to $2,000 for a third violation and civil penalties up to $5,000 for a fourth or subsequent violation; and

Establish a civil penalty of up to $100,000 for the unfinished dextromethorphan possession, receipt and distribution violations.

So, while there is no requirement that retailers request identification, if they fail to do so and the individual is under 18 years old, the retailer is deemed to have known that the individual is underage unless the individual appears to be at least 25 years old. Likewise, the bills would provide an affirmative to retailers who examine the identification and reasonably conclude that the ID was valid and indicated the person was over 18 years old.

The bills have been referred to responsible committees in each chamber; the House bill referred to the Committee on Energy and Commerce on January 29, 2014 and the Senate bill referred to the Committee on Health, Education, Labor and Pensions on March 21, 2013.